Bill C-38: An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons)

Tabled in the House of Commons, February 9, 2017

Explanatory Note

The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of Charter considerations, recognizing that a bill may change over the course of its passage through Parliament. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-38, An Act to amend An Act to amend the Criminal Code (exploitation and trafficking in persons), for compliance with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill, including the importance of promoting values that underlie the Charter – notably human dignity, liberty, security of the person, the right not to be subjected to any cruel and unusual treatment or punishment, and the right to be presumed innocent until proven guilty.

What follows is a non-exhaustive discussion of the ways in which Bill C-38 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Promoting Charter values, including the right not to be subjected to any cruel and unusual treatment or punishment (s. 12 of the Charter)

Former Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons), received Royal Assent in June, 2015 but has yet to be proclaimed in force. Bill C-452 would amend the Criminal Code by enacting section 279.05. This provision would require the imposition of consecutive sentences for human trafficking offences, and other related offences arising out of the same event(s), many of which are punishable by mandatory minimum sentences of imprisonment. Most human trafficking offences carry mandatory minimum penalties, ranging from 1 to 6 years. Because mandatory minimums have the potential to unjustifiably limit the section 12 Charter protection against cruel and unusual punishment or treatment, and the addition of a consecutive sentence requirement increases this concern, Bill C-38 would bring into force all of former Bill C-452 except for its mandatory consecutive sentencing provision.

More specifically, section 279.05 has the potential to be found to unjustifiably limit section 12 of the Charter. The section 12 right against cruel and unusual punishment has been held by the courts to protect against the imposition of grossly disproportionate sentences of imprisonment. While generally offences arising out of the same event(s) are served concurrently, section 279.05 would require that such sentences be served consecutively where an offender is sentenced at the same time for a human trafficking offence and any other offence arising out of the same event(s). In terms of section 12 of the Charter, this provision could be particularly concerning where the conduct involves the commission of multiple trafficking and other offences, for example in relation to multiple victims, which may carry mandatory minimum penalties. Courts would be obliged to impose such sentences consecutively, without regard to an offender’s specific circumstances, which could lead to grossly disproportionate sentences in some reasonably foreseeable circumstances. A grossly disproportionate sentence is by definition one that is “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society. Such an outcome could limit the right against cruel and unusual punishment that is protected by section 12 of the Charter.

Not bringing section 279.05 into force is consistent with the Government’s commitment to respect and uphold the Charter. It would also allow the Government to continue with its careful study of related mandatory sentencing provisions as part of the broader criminal justice system review. In the meantime, the other provisions of Bill C-452 would be brought into force; they are consistent with Charter values and strengthen Canada’s criminal law response to human trafficking and exploitation.

The right to be presumed innocent until proven guilty (s. 11(d) of the Charter)

In addition, Bill C-452 would amend the Criminal Code by enacting subsection 279.01(3). Subsection 279.01(3) allows prosecutors to prove one of the elements of the human trafficking offence – that the accused exercised control, direction or influence over the movements of a victim – by establishing that the accused lived with or was habitually in the company of the victim. Usually, prosecutors need to prove all elements of an offence beyond a reasonable doubt through direct or circumstantial evidence. In this case, although the accused would be given the opportunity to raise a reasonable doubt, the prosecutor would only need to prove that the accused lived with or was habitually in the company of the victim to make out one of the elements of the trafficking offence – control, direction or influence over the victim’s movements. For this reason, subsection 279.01(3) may be considered an exception to the Charter-protected right of accused persons to be presumed innocent until proven guilty (s. 11(d)). Any limitation of section 11(d) of the Charter must be reasonable and demonstrably justified in a free and democratic society, as required by section 1 of the Charter.

The Supreme Court of Canada upheld a similar evidentiary presumption in the context of prostitution-related offences, in its 1992 R. v. Downey decision. The following considerations support the justification of the evidentiary presumption in subsection 279.01(3). First, more effectively prosecuting human traffickers is a pressing and substantial objective. Second, the presumption itself is a reasonable one to draw. Third, it has a minimal impact on the presumption of innocence, because it affects only one element of the offence and is rebuttable if the accused points to evidence that raises a reasonable doubt. Finally, the presumption is a tailored response to unique evidentiary difficulties that can arise in human trafficking prosecutions, due to the vulnerability of the victims and the power imbalance between victims and traffickers. For example, vulnerable complainants often fear reprisal from their exploiters and, as a result, have difficulty coming forward.

Date modified: